Catling & Gould

Case [2022] FedCFamC1F 233

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Catling & Gould [2022] FedCFamC1F 233

File number(s): SYC 6392 of 2017
Judgment of: CHRISTIE J
Date of judgment: 13 April 2022
Catchwords:

FAMILY LAW – JURISDICTION – Where proceedings were initiated in the Family Court of Australia prior to 1 September 2021 – Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 followed – Legislative intent that the jurisdiction of the Family Court of Australia continue in the Federal Circuit and Family Court of Australia (Division 1) in respect of proceedings filed in it – Where the matter has been transferred by the Chief Justice of Division 1 and subsequently transferred by the Chief Judge of Division 2 – Where the Court is satisfied that Division 1 has jurisdiction to hear and determine this application.

FAMILY LAW – PARENTING – Allegations of family violence and excessive alcohol consumption made against the father – Concern as to the father’s mental health – Where the father’s engagement with treating practitioners has suffered by his lack of candour with them – Where the father has been encouraged in his view that he is not responsible for the position he finds himself by those closest to him – Where it is only when there is some indication of changed thinking or changed behaviour that there can be confidence the father’s conduct won’t be repeated – Where interactions with the father cause the child and mother anxiety – Not in the children’s best interests to spend supervised time with the father – Orders for the children to live with their mother and spend no time with their father.

FAMILY LAW – CHILD SUPPORT – Where hardship to the father can only be rectified by setting the child support agreement aside – Exceptional circumstances substantiated – Agreement set aside – Mother able to apply for child support assessment if required.

Legislation:

Child Support (Assessment Act) 1989 (Cth) ss 99, 136

Child Support (Registration and Collection) Act 1988 (Cth)

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA

Federal Circuit and Family Court of AustraliaAct2021 (Cth) ss 52, 132, 149

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1, Sch 2

Evidence Act 1995 (NSW) s 128

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Cases cited:

Balzano & Balzano (2010) FLC 98-048

Cirillo & Cirillo (No 4) (2022) FedCFamC1F 208

Simpson and Hamlin (1984) FLC 91-576

Nevins& Urwin (No 3) [2022] FedCFamC1F 201
Division: Division 1 First Instance
Number of paragraphs: 193
Date of hearing: 21-25 February 2022
Place: Sydney
Counsel for the Applicant: Mr Dura
Solicitor for the Applicant: Barry Nilsson Lawyers
Solicitor for the Respondent: Marsdens Law Group
Counsel for the Independent Children's Lawyer: Mr Hill
Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers

ORDERS

SYC 6392 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS CATLING

Applicant
AND:

MR GOULD

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE…

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AGLC
Catling & Gould [2022] FedCFamC1F 233
Case
[2022] FedCFamC1F 233
Decision Date

CaseChat Overview and Summary

The case of Catling & Gould involves a dispute between a father and a mother regarding parenting orders and child support enforcement. The father originally sought parenting orders as an intervenor but discontinued his application before the final hearing. The mother has re-partnered since the separation, and the father's time with the children was suspended by Senior Registrar Campbell on 14 May 2019, who also appointed an Independent Children's Lawyer. The legal issues before the court included the jurisdiction to hear the case, the interpretation of the Federal Circuit and Family Court of Australia Act 2021, and the impact of legislative changes on the court's authority. The court needed to determine whether the Federal Circuit and Family Court of Australia Division 1 had the jurisdiction to hear the matter, given that the matter had commenced in the Family Court of Australia prior to the legislative changes.

The court found that the jurisdiction to hear the matter lay with the Federal Circuit and Family Court of Australia Division 1, as confirmed by all parties involved. The court examined the changes to the Federal Circuit and Family Court of Australia Act 2021, specifically sections 132 and the transitional provisions, to understand how these affected the court's jurisdiction. The court held that while the original jurisdiction for certain child support matters had shifted to Division 2, matters already in progress, like this one, were to be treated as if they were in Division 1. This interpretation was consistent with the intent of Parliament to avoid disruption to ongoing proceedings.

The court concluded that the Federal Circuit and Family Court of Australia Division 1 had the requisite jurisdiction to continue with the hearing of the case. The evidence presented by the mother regarding the father's conduct and health issues, as well as allegations of family violence, were considered in the context of the children's welfare. The court made specific findings on the credibility of the father's denial of certain allegations and his history of violence and mental health issues, which were crucial in determining the parenting orders.

Orders

Orders of the court

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Background

Background to the litigation

Mr B (“the paternal grandfather”) sought parenting orders as intervenor but discontinued before the final hearing.BACKGROUND The parties commenced cohabitation in October 2009 and married in 2011. The parties separated on 29 January 2017 and are divorced. The final consent parenting orders provided for the children to live with the mother and spend time with the father. The mother has re-partnered. On 14 May 2019, Senior Registrar Campbell (as he then was) made orders suspending the father’s time with the children and appointed an Independent Children’s Lawyer (“the ICL”).JURISDICTION After I had heard the evidence in this matter and while judgment was reserved it became apparent that an issue had arisen about the operation of the legislation which commenced 1 September 2021 in so far as jurisdiction was concerned. The matter was listed before me and the lawyers for the mother, the father and the ICL all confirmed that they accepted that the jurisdiction to determine the matter in the Federal Circuit and Family Court of Australia (“FCFCOA”) Division 1 existed. They did so on the basis that they accepted the law was as I outline here. This matter commenced in the Family Court of Australia (“the FCA”). This matter was heard in FCFCOA Division 1 (“Division 1”). They are the same Court with a different name. The manner in which the judges of the Court obtain jurisdiction has changed. To create a single point of entry to the two courts, original jurisdiction is conferred on FCFCOA Division 2 (“Division 2”). As a consequence, Division 1 only obtains jurisdiction following a transfer from Division 2. Sections 132(1)(d)(i) and (ii) of the Federal Circuit and Family Court of AustraliaAct2021 (Cth) (“the FCFCOA Act”) provides that Division 2 has original jurisdiction in matters instituted in the Court by the Child Support (Assessment Act) 1989 (Cth) (“CSAA”) or Child Support (Registration and Collection) Act 1988 (Cth) (“CSRCA”). The application to vary or discharge a Binding Child Support Agreement is a proceeding under s 136 of the CSAA. Prior to 1 September 2021, s 99 of the CSAA conferred jurisdiction on the FCA. That section was amended by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) s 3, Sch 2, Item 163, which conferred jurisdiction on Division 2. Where once both Courts had jurisdiction under s 99, that Act explicitly gave it to Division 2 alone. The application to enforce the child support agreement is an enforcement proceeding under the Family Law Act 1975 (Cth) (“the Act”). Parliament appears to have intended that there be no disruption to the hearing of matters in Division 1. However, as her Honour Justice Hogan set out in Nevins& Urwin (No 3) [2022] FedCFamC1F 201 in which she states a case to the Full Court of Division 1: There are no provisions of the [Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)] which relate specifically to proceedings, commenced in the previously prescribed original jurisdiction of this Court before 1 September 2021, which have not been finalised by 1 September 2021.This differs from the situation in relation to appeals: for example, item 30 of Division 3 (Matters substantively heard, in whole or part, before the commencement day) of Part 4 of Schedule 5 relevantly provides that:30 Matters before the Full Court of the Family Court of AustraliaJudgment to be delivered by the Federal Circuit and Family Court of Australia (Division 1)(1) If:(a)before the commencement day, a Full Court of the Family Court of Australia has heard, in whole or in part, any of the following:(i)an application made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;(ii) an appeal allowed by Part X of that Act;(iii) an appeal referred under subsection 96(5) of that Act;(iv) a special case for the opinion of the Full Court; and(b) on the day before the commencement day, either:(i)a substantive hearing of the application, appeal or special case has not concluded; or(ii)a substantive hearing of the application, appeal or special case has concluded, but judgment has not been delivered in relation to the application, appeal or special case;then, on or after the commencement day, despite the amendments to the Family Law Act 1975 made by this Act, the Federal Circuit and Family Court of Australia (Division 1), constituted as a Full Court, must:(c)if required, conclude the substantive hearing of the application, appeal or special case; and(d)deliver the judgment in relation to the application, appeal or special case.Regard may be had to prior evidence(2)A Full Court of the Federal Circuit and Family Court of Australia (Division 1) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court of the Family Court of Australia, as constituted before the commencement day.…Appellate jurisdiction(5)To avoid doubt, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction for the purposes of this item.Reference to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth) (“the Transitional Provisions Rules”) reveals that r 7 of the same provides as follows:7Proceedings before the Family Court of Australia before 1 September 2021(1) This section applies in relation to a proceeding if:(a)immediately before 1 September 2021, the proceeding, or part of the proceeding, was in the Family Court of Australia; and(b) the proceeding had not been determined before that day.(2)For the purposes of the FCFCA Act, on and after 1 September 2021, that proceeding is taken to be a proceeding in the Federal Circuit and Family Court of Australia (Division 1).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On behalf of the mother it was argued that the father’s income has in fact increased since separation. That does not, however, paint the whole picture.CONSIDERATION: PARENTING The mother submits that the Court would find that the father’s conduct would place the children at risk of being exposed to family violence. The father’s health is central to the assessment of risk. While he has been relatively diligent in seeking treatment from psychologists and medication via his psychiatrist, his engagement with those treating practitioners has suffered as a consequence of his lack of candour with them and his inability to understand and appreciate the objective seriousness of the concerns raised by others (particularly his former spouse). The father has been diagnosed with chronic Major Depressive Disorder and anxiety. In May 2012, he first consulted Dr D (“Dr D”) who has remained his treating psychiatrist. The father has also reported to his treaters over a long period of time that he struggles with binge drinking alcohol. The father submits that he has been wrongfully separated from his children and any risk (or perceived risk) is ameliorated by the conditions to which he is prepared to agree in order to recommence time with his children.Family violence The mother alleges that the father engaged in family violence commencing in 2010 before the parties were married, continuing during the parties’ relationship and culminating in the father making separate threats to kill the mother and her partner after separation. In large part the father denies the mother’s allegations and to that end it will be necessary to make findings about many of the disputed incidents. The father was legally represented in the proceedings. The father swore an affidavit in response to the mother’s evidence in chief on 2 February 2022. He specifically joined issue in respect of certain of her allegations. Where the father has had the opportunity to give evidence about an allegation made by the mother and has chosen not to, I find that he concedes that the events described occurred as the mother has sworn, or largely, as she has sworn. In 2002, an Apprehended Domestic Violence Order (“ADVO”) was made naming a former partner of the father as the protected person. The material produced on subpoena in these proceedings states that the father breached the ADVO by throwing a wine glass which hit the back of his former partner’s head. The version of events the father told the police (according to the documents) was that he was intoxicated and the glass “went out of his hand”. He did not see where it landed or hear a smash. While he “had the shits”, he did not intend to hit the victim. The father was convicted of breaching an ADVO on 22 January 2003. He was sentenced to 50 hours of community service. In 2010, the mother says the father punched her neck, shoulder and arm while she was driving him home from the pub. The father agrees that there was an occasion on which the mother collected him from the pub but stated “I deny that I ever hit [the mother] or became angry with her”. The mother says that following this incident the parties postponed their wedding. The parties did postpone their wedding but the father says that was due to the stress the mother was feeling as she was studying at the time. I find it more probable than not that the father was violent to the mother on this occasion as she suggests. In forming that view I have had regard to the material from the mother’s psychologists during the relationship in which the mother has given a history of the domestic violence perpetrated by the father.